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Thank you.

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Mr. Neimer respectfully requests that this court set aside the Arizona District Court's order granting summary judgment to the defendants.

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For Mr. Neimer, Section 1983,

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to any evidence in the record to support that assertion.

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point, what was the evidence that raised a genuine issue material fact that defendants gave Nymer inadequate medical care?

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Your Honor, so within 20 seconds of the audio encounter, Mr. Nymer has testified that the defendants called him a nigger, which is not a stray remark under

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There's no evidence in terms of standard of care, Your Honor.

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Of inadequate medical care.

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Your Honor, Mr. Nymer alleges that prior to the acts that dealt into the violence, the defendant's aggression in terms of their cursing, their hostile treatment towards Mr. Nymer, their repeated asking of questions, that all is

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to an adequate medical care.

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And because this court has recognized that the racial slur is indicative

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Yes, because the defendants acted in intentional discriminatory ways that denied him treatment.

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What about the medical treatment was objectively below the standard of care?

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That objectively, Your Honor, that is part of what Mr. Nymer argues that a jury should be

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leaving aside the slurs.

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And Mr. Heimer referred the request that this court set aside the Arizona District Court's order granting summary judgment to defendants based on the lower court's misapplication of the heck doctrine.

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The district court's conclusion that Mr. Heimer's civil claim for excessive force necessarily implies the invalidity of his criminal conviction is incorrect because plaintiffs claim that defendants retaliated against him while he was on the ground does not conflict at all with the idea that he assaulted them as

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Once he's on the ground, and this is borne out both by plaintiff's testimony and the testimony of third party independent witness Perry Allen, who testified at trial.

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Once he's on the ground and defendants, as both testimonies bear out, begin hitting him, that behavior is not covered by the conviction.

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And this is only further bolstered.

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So you relied in the brief, you relied, I believe, solely on California law.

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How do we know that Arizona law is the same?

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California resisting arrest statute, there is not particular precedent regarding this Arizona aggravated assault statute.

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And yet, if we look to the jury instructions, as the court instructs us in Lemos, we can see that the jury found only that Mr. Nymer committed an assault while he knew that the firefighters were in the course of their official duties.

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And so, at the conclusion of that assault,

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There is no statement from the jury as to whether the firefighters were in their duties once he's on the ground, and the assault has been concluded.

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Furthermore, the jury was not instructed as to the scope of the firefighters' duties, nor were they instructed that they have to reject the testimony wholesale of the independent witnesses, and so they could very well have believed Perry Allen's

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Mr. Nymer, while also accepting that Mr. Nymer did indeed push one defendant and swing at another.

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What's your best case that you're relying upon?

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I would say that Hooper v. County of San Diego provides the strongest basis for the district court's order to be overturned in Hooper.

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A woman who was convicted of resisting

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arm away at the moment the police were putting her under arrest was at the same time bitten by a dog.

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we would have to find that the district court was right.

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Isn't that correct?

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Or do you think there's some other principle involved?

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I think that there is a basis to conclude that there can be, that these events can be separated out.

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And ultimately, the question of... Is that a question of Arizona law?

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It may indeed be a question of Arizona law, but the district court did not rule specifically on that point.

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They only said that because there was not a significant temporal separation that Mr. Hammer's conviction

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procedural bar knocking down his case.

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And Your Honors, I would reserve the rest of my time for a rebuttal.

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Thank you very much.

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Good morning, Your Honors.

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May it please the court, Garrett Craigs, on behalf of defendants, appellees.

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at least to use the N-word of racial slur during the course of their official duties.

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And there was never any evidence that they did.

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Why can I say that there was never any evidence that they did?

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Because on this record and in front of the jury, considered by the criminal jury, was an audio recording.

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That entirety of the audio recording was over two hours long.

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But we can break that down between on scene, before the officers arrived, during the time the officers were present, and then at the hospital.

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On scene.

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Your Honor, when the record clearly shows that that is not the case, then the naked assertion by the plaintiff should not be considered by this court.

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Your Honor, the record shows that the audit recording, the

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depicts the entirety of the violence that occurred and would have encapsulated any use of a racial slur.

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And there is no racial slur that was used.

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And we know that because you can listen to the recording and the transcript can be read.

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The only time that the transcript says that a racial slur was used is after the transcript was created and plaintiff reputed.

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Rich kid does.

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that's a matter I would like to follow up by a 28-J letter.

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Your Honor.

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Does that make a difference in this case, though?

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It would make a difference.

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How does it make a difference?

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Yes, Your Honor, it would make a difference.

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It would make a difference because you would see that the record reflects that there was no racial slurries, and why does that impactful to this court?

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The only basis, excuse me, while

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was the use of the racial slur.

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Your Honor, furthermore, towards a discriminatory purpose.

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what they did here.

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What the record shows is not that the firefighters, the defendant appellees, began cursing and delaying immediately.

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What the record shows is that when the fire engine pulled up to the location of Mr. Neimer, Mr. Neimer began yelling immediately at the defendant appellees.

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What the record then shows is that it was plaintiff Mr. Neimer who began cursing at defendant appellees.

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Your Honor, the protocols on the

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attempts to treat, but they continued attempting.

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That is how we know that Mr. Nymer did not receive any medical care.

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They continued to find out what was wrong, what drugs may be affecting his behavior, what drugs may be affecting his body.

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And furthermore, after the violence, which I'm going to get to next,

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evaluated, his heart condition being evaluated.

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He had been given an IV.

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He had been given pain medication and his vitals were being taken.

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He was receiving all of the medical care that would be expected.

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So the firefighters met the standard of care in this situation.

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And Mr. Narver.

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Yes, Your Honor.

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What was the plaintiff here, defendant at that time, I guess what was he charged with?

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Intervented assault, Your Honor.

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Combined with no racial slur, there can be no discriminatory purpose shown.

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There is no evidence of it, and therefore Mr. Neimer would not be able to succeed if this were remanded, and therefore should not be.

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Your Honor, getting to your point.

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different than the Hooper case.

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In the Hooper case, it wasn't simply that the plaintiff there reached out her arm and was bitten by a dog.

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There was a sequence of events, and those sequence of events were analyzed under California state law, which, as Your Honors pointed out, is different than Mr. Nymer's case.

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In the Hooper case,

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the entirety of the violence.

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And so what violence did occur?

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Well, in the complaint, plaintiff says, defendant started the fight.

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I was there.

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I called for medical help.

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Defendants began swinging at me and punching at me.

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But that's not at all what was presented to the jury by all the witnesses.

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And that's not at all what the jury decided in their verdict.

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What the jury found was that Mr. Nymer had violated two counts of

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one officer and swung at another, but then there's evidence in the record that after that, which would be enough to be an assault against the officers, but then after that there's evidence in the record, both from Mr. Neimer and from a third party, that he was down on the ground and being punched by one of the firefighters.

[00:18:05] Speaker 01:
So why isn't that more like

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all of our cases, Hooper and Lemos, and there's a whole bunch of them, where you say if something happened, even if it's a continuous sequence, if something happens later and isn't the exact same act that was the basis of the assault claim, then it's not heck barked.

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Thank you, Your Honor.

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The heck barked

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Mr. Neiber, while Mr. Neiber was on the ground.

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But that happened within 20 seconds and there was no break between when the... So you said there doesn't have to be a break.

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It can be a continuous sequence.

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Well, Your Honor, in Beets versus County, you mentioned that there are several... Well, Beets was the exact same act.

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That's what we said.

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She hot the gun at the person coming towards me in the truck.

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And I'm offering that this is the exact same act.

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Mr.

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swinging and pushing, and to gain control of Mr. Nymer, the defendants restrained him.

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That is the exact same fact pattern.

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That is more like Beets versus County of Los Angeles.

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That is more like... Pardon me.

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Yes.

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Mr. Griggs, the fact that

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guilty for the to receive the convictions that Mr. Member received.

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assault on police officers encompasses all aspects of an officer's good faith performance of his or her job-related duties, even if the officer's actions are later found to be constitutionally unreasonable.

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So they were acting in their official duties, therefore he could be convicted of assaulting them, even though they were assaulting him.

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what the jury found and what the jury decided.

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Your Honor, the jury heard the testimony of multiple witnesses, including the firefighters.

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They heard Mr. Nymer's account where he said he was struck first and was taken to the ground and pummeled.

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They also heard the accounts where, but what they decided, what the verdict shows, is that because Mr. Nymer was found guilty of aggravated assault, two counts, then the entire

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Mr. Nymer was the provocateur in bringing the force, and the firefighters, the defendants were responding to the force to protect themselves and to protect their colleagues.

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That is not excessive force, and that is not outside of their official duties.

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Your Honor, the District Court... You're well over time, so can you wrap up?

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Yes, the District Court relied on the criminal jury to...

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time.

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The defense contends that there was still adequate medical care given during that point.

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However, the defendants, they're telling Mr. Nymer to quote, ride his high out.

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He's the one down there doing drugs and it's his problem.

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They are acting slowly.

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They are not communicating with him.

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To someone who is in distress at least three of them have ten years of experience at the time of the encounter So your honors with two minutes and 45 seconds, which is what the audio captures them determining that everything is

[00:24:29] Speaker 01:
Nymer vs. Brock is submitted.